MOTION FOR AN INJUNCTION AND RESTRAINING ORDER AGAINST DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER

Restraining Order

Case No: 07-20073-CM 07-20124-CM OS-20tOS-CM

CARRIE NEIGHBORS,
Defendant 1,

GUY M. NEIGHBORS
Defendant 2,

DEFENDANT [lJ 'S MOTION FOR AN INJUNCTION AND RESTRAINING ORDER AGAINST DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER
[Pursuant to FRCP Rule 65]

COMES NOW on this 28 th day of June 2010, the Defendant [1], Carrie Neighbors, acting
as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09 by the Honorable Judge Mary H. Murguia specifically related to testimony by Dr. Robert G. Lucking, and also U.S Court of Appeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam

Ghane, Decision by MURPHY, HANSEN, and BYE, Circuit Judges Filed: January 29, 2010, to
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refrain from a pattern of practice to administer this type of medication, evaluation, testimony based on guess work, as well as, his appearance of prior perjury before a court of law. The Injunction and Restraining Order is as follows: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010 that there was ill-gotten privileged communications (both telephone and written) intercepted and included in a competency evaluation report by Dr. Robert G. Lucking on Carrie and Guy Neighbors, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information.

2). The Defendant [I] was evaluated in a report filed with this court by Dr. Robert G. Lucking, as well as, the interrogation of Defendant [2] about his wife's case was beyond the jurisdiction of a Doctor for the competency evaluation. It also violates The World Medical Association, and APA rules stating that a ''physician shall not use nor allow to be used, as far as
he or she can, medical knowledge or skills, or health information specific to individuals, to facilitate or otherwise aid any interrogation, legal or illegal, ofthose individuals. " As well as,

the Doctor had violated Principle E of the code of conduct, in which violated the right to privacy, and illegally intercepting the private letters and phone conversations, or communications between a married couple. Whereby Dr. Lucking's report violates Defendant [1]'s Constitutional right to be evaluated for this court by a qualified physician bound by the rules of ethics, including the procedural intake process and complete medicine evaluation, which establishes a qualified doctor- patient relationship prior to the competency evaluation and submission of report, which is ruled and protected by laws and ethics relating to the practice of psychiatry, which Dr. Lucking did not have with Defendant [1]. Since the government has opened this "Pandora's box", the Defendant [1] now has the right to challenge Doctor Lucking's credibility.
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3). Now the Defendant [1] through research has found out a pattern of practice of Dr. Robert G. Lucking to mislead and/or contradict as to perjure himself, as well as, inappropriately secure a Sell Order, without the Harper Hearing, before initiating a Sell Litigation, in which Dr. Robert G. Lucking has now violated C.F.R. § 549.43, as law mandates.

4). Dr. Robert G. Lucking has failed to prove that Defendant [2] is dangerous to himself or others, nor has he proven that he is gravely disabled, nor offered less intrusive alternatives as law mandates, whereby Dr. Robert G. Lucking has failed to meet the elements as mandated by the Supreme court for this type of court ordered action or medication.

5). The Defendant [1] request that the USDC order an immediate removal of Dr. Robert G. Lucking from this cause of action, due to his failure to comply with proper procedures, as well as, the prior practice to mislead or perjure and or contradict himself, violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information, conflict of interest, and an established pattern of practice by Dr. Robert G. Lucking, Staff Psychiatrist, Federal Medical Center, Butner NC" violating fundamental due process rights to a fair trial, to inappropriately secure a Sell Order, without an Harper Hearing, before initiating a Sell Litigation. [See refUSDC ofArizona case no: CR-05-0099-02-PHX­

MHM order dated 09/28/09 by the Honorable Mary H Murguia]
6). Whereby the Defendant [11 has no other choice but to file an Injunction and Restraining Order against Dr. Robert G. Lucking to cease and desist any further participation within this matter before this court, as well as, due to the new information, in which has come to light, in which will show a pattern of practice, the Defendant [I] can only request that the court

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strike any and all reports Dr. Robert G. Lucking had submitted on both of the Defendants, in this action, due to unreliable testimony, as well as, evaluations of Dr. Robert G. Lucking. 7). The Defendant [1] would like the court to also request that the Plaintiff seal, destroy and disregard any reports, in which they may have in their possession from Dr. Robert G. Lucking, due to the new evidence, in which has come to light.

8). The Defendant [1] would like the court to also request an independent evaluation for Defendant [2] from another Doctor, with a standard of ethics as to not prej udice Defendant [1]' s previously completed competency reports by two qualified physicians, due to the new evidence, in which has come to light.

A.) As in "This is also a pattern ofpractice of inconsistencies in Dr. Lucking's testimony

that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by
the Honorable Judge Mary H. Murguia.

B.) The apparent lack of rationale by Dr. Lucking's testimony see: See Ghane II, 490 F.3d

at 1040. "Nonetheless, in crediting an expert's opinion, it is not the opinion itselfthat is important, but the rationale underlying it". Circuit Judge Hanson asserts that Dr. Lucking's
Rationale of "incompetence" in his report that simply "because Ghane continued to distrust his

attorneys and was therefore unable to assist in his defense. " differed from the Supreme Court
definition which states "The Supreme Court has defined a defendant's ability to assist properly in

his defense as possessing a... "'sufjicient present ability to consult with his lawyer with a reasonable degree ofrational understanding.'" Cooper v. Oklahoma, 517 Us. 348,354 (1996) (quoting Dusky v. United States, 362 Us. 402, 402 (1960) (per curiaml)." "Disagreement with

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one's attorney does not make one mentally unable to consult with him". Cf United States v. Minnis, 489 F.3d 325, 329 (8th Cir. 2007)

9). Since the Defendant [1] can show recent case law doctrine or case law precedence, the burden now shifts to the government to disprove.

MEMORANDUM IN SUPPORT OF

1). The U.S. Attorney had filed her Motion filed Under Seal on 06/23/2010 to by court order have Defendant [1] 's phone conversations and letters due to Dr. Robert G. Lucking's Report in a "statement of facts", in which stated Defendant [1] has paranoid delusional belief, in which Dr. Robert G. Lucking has now violated confidentiality laws, ethic laws, as well as, USPS mail which was already sealed. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of private communications.

3). Now the Defendant [1] has recently discovered that (quote) "this is not the first time

that a court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [U.S Court ofAppeals for the 8th Cir.. Case no: 08­

3700 U'S. v. Hessam Ghane], in which would show a pattern of practice of both extrinsic and
constructive fraud before the court. "This is also a pattern ofpractice ofinconsistencies in Dr.

Lucking's testimony that remains unexplained" As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia. See also: "Dr. Lucking, who had not seen
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Dr. Ghane since March 2006 when he hadfound Dr.Ghane competent, when he testified at the August 2006 competency hearing" as stated in [ US Court ofAppeals for the

sth Cir,. Case no:

08-3700 Us. v. Hessam GhanJ Decision by MURPHY, HANSEN, and BYE, Circuit Judges

Filed: January 29, 2010,

4). The Defendant had discovered other related facts in which will be addressed in her Affidavit in Support of the Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter. THEREFORE the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number
[CR-05-0099-02-PHX-MHM, order dated 09128109J by the Honorable Mary H. Murguia, and

also [US Court ofAppeals for the 8th Cir,. Case no: 08-3700 Us. v. Hessam Ghane], specifically related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication, as well as, his appearance of prior perjury and or lack of
credibility before a court of law.

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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]

The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2] counsel ofrecord 142 Cherry Olathe, Kansas 66061

Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101

On this

zs" day of June 2010.

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Carrie Neighbors Defendant [1] / Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785

IN THE UNITED STATES COURT
FOR THE DISTRICT OF KANSAS
UNTIED STATES OF AMERICA
Plaintiff,

v.

Case No: 07-20073-CM 07-20124-CM OS-20l0S-CM

CARRIE NEIGHBORS,
Defendant 1,

GUY M. NEIGHBORS
Defendant 2,

STATE OF KANSAS

) ) SS COUNTY OF DOUGLAS )

AFFIDAVIT IN SUPPORT OF DEFENDANT ill'S MOTION FOR
AN INJUNCTION AND RESTRAINING ORDER AGAINST
DR. ROBERT G. LUCKING PARTICIPATING IN THIS MATTER

[Pursuant to FRCP Rule 65]
COMES NOW on this 28th day of June 2010, I, Carrie Neighbors, (Defendant 1) being of lawful age and sound mind, swear on oath, and hereby give an Affidavit in Support of Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to

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Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number [CR-05­

0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia, and also
[US Court ofAppealsfor the 8th Cir.. Case no: 08-3700 u.s. v. Hessam Ghane], specifically
related to Dr. Robert G. Lucking, as to refrain from a pattern of practice to administer this type of medication evaluation, as well as, his prior appearance of perjury before a court of law. That the following is true and accurate: 1). The U.S. Attorney had written in her Motion filed Under Seal on 06/23/2010, that there was ill-gotten privileged communications (both telephone and written) intercepted, in which was violations of ethics, violations of illegally tampered mail, violations of privileged communications, violations of confidential information. 2). Dr. Robert G. Lucking was evaluating the Defendant [1] based upon uncertain facts, as well as, without her consent, by bits and pieces of her private communications, involving unknown facts. 3). Now the Defendant [1] has recently discovered that "this is not the first time that a

court within the District ofArizona has been addressed by the Federal Medical Center's attempts to inappropriately secure a Sell Order. See United States v. Gonzalez-Aguilar, 446 F. Supp. 2d 1099 (D. Ariz. 2006)." As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09]
by the Honorable Mary H. Murguia, and also [US Court ofAppealsfor the 8th Cir.. Case no:

08-3700 Us. v. Hessam Ghane, (Jan.29,201 0)) in which would give the appearance of a pattern
of practice of both extrinsic and constructive fraud before the court. "This is also a pattern of

practice ofinconsistencies in Dr. Lucking's testimony that remains unexplained. " As stated in [CR-05-0099-02-PHX-MHM order dated 09/28/09] by the Honorable Mary H. Murguia.

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4). In [United States v. Hessam Ghane Case no: 08-3700 (8th Cir. 20l0)J
The Appellate court found, Dr. Lucking gives conflicting indecisive testimony "Dr. Lucking

believed that Ghane has never been competent to stand trial, contrary to his own earlier evaluations ofGhane"

5.) According to Dr. Lucking's theory of competency, a defendants desire to be found competent is a factor to find him incompetent to stand trial. [US Court ofAppeals for the 8th

Cir.. Case no: 08-3700 Us. v. Hessam Ghane,(Jan.29,20l0)J "We are also concerned about the magistrate judge's reliance on Dr. Ghane's goal ofbeing found competent, afactor also identified by Dr. Lucking, as evidence that he was in fact incompetent to stand trial. "

6.) Dr. Lucking's testimony has issues with credibility. See ref: [US V. Fabela, USDC of

Arizona case number CR-05-0099-02-PHX-MHM, order dated 09/28/09] "Defendant takes issue with Dr. Lucking's claim that extrapyramidal symptoms occur in less than approximately 30% of patients, and that Dr. Lucking had not seen an acute dystonic reaction in a number ofyears. Defendant notes that within five days ofstarting Defendant on Haldol, Dr. Lucking prescribed Defendant Cogentin, which is a known treatment for dystonic reactions to Haldol. "

7.) This FMC under the direction of Dr. Robert G. Lucking has made it a practice to fail to attempt to exhaust all other practical voluntary treatment options, including the fact that during 5 months of evaluations under Dr. Lucking in FMC Butner, Defendant [2] was never referred to a competency class. See also: See ref: [US V. Fabela, USDC ofArizona case number CR-05-0099­

02-PHX-MHM, order dated 09/28/09] "Generally, before seeking an Order from this Court under Sell, the government shouldfirst attempt to exhaust all other practical voluntary treatment

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options. The Court is not convinced that such an exhaustive attempt has been made by the FMC in this case ".

8). Whereby, it is more likely or practical that with the supporting documents in this case, with the other case law Defendant [1] has incorporated in this document, that the 51 % burden of proof is in favor ofthe Defendant [1], in which likely probability that Dr. Robert G. Lucking report is bias, prejudicial, and tainted, or even directed by a third party, and continues, since Defendant [2]'s phone privileges at CCA were ordered blocked by a third party, as well as, interfered with.

WHEREBY, the Defendant [1], Carrie Neighbors, acting as a pro se litigant is filing a Motion for an Injunction and Restraining order against both the Plaintiff and specifically in relation to Dr. Robert G. Lucking from any further participation within this matter, due to unreliable testimony, as new information has come to light from USDC of Arizona case number

[CR-05-0099-02-PHX-MHM, order dated 09/28/09] by the Honorable Mary H. Murguia
specifically related to Dr. Robert G. Lucking, and also [U.S Court ofAppealsfor the 8th Cir,.

Case no: 08-3700 UiS. v. Hessam Ghane, also known as Sam Ghane Decision by MURPHY,
HANSEN, and BYE, Circuit Judges Filed: January 29,2010,] to refrain from a pattern of practice to administer this type of medication evaluation, testimony based on guess work, as well as, his prior appearance of perjury and inconsistency before a court of law, and PRA YS this USDC Court GRANT in favor of the Defendant [l]'s Injunction and Restraining Order and submit an Order to Remove Dr. Robert G. Lucking from this cause of action, as well as, any and all documentation he or his facility had submitted, due to what appears to be a pattern of

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practice to mislead, perjure, violate ethics, and violate the proper procedures, as defined in C.F.R. § 549.43.

Respectfully submitted,

Ca rre Neighbors Defendant [1J / Pro e Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785

SUBSCRIBED AND SWORN to before me on this

Z
day of June 2010.

My commission Expires on:

5)31/1 . . 1

SEAL:

+.()~8(/('
11111

WILL McCULLOUGH
MyAPPt.EXp.3!'5'j' ....,

UrI\IIN~A~

Motion for an Injunction and Restraining Order

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CERTIFICATE OF SERVICE [Pursuant to KSA 60-205]

The undersigned also hereby certifies that a true and correct copy of the foregoing document in the above captioned matter was deposited in the United States mail, first class postage prepaid, addressed to: Cheryl A Pilate Melanie Morgan LLC Defendant [2J counsel ofrecord 142 Cherry Olathe, Kansas 66061

Marietta Parker Terra Morehead U.S. Attorneys 500 State Ave. Suite 360 Kansas City, KS 66101 On this 28th day of June 2010.

Ca . ei bors Defendant [1J/ Pro Se Litigant 1104 Andover Lawrence, Kansas 66049 (785) 842-2785

Motion for an Injunction and Restraining Order

Page 13

government has failed to bring to trial promptly in violation of the Speedy Trial act

Speedy Trial Violation in Yellow house case Order by Judge

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
United States of America,
Plaintiff,
v. Case No. 07-20073-01/01-JWL
Guy Neighbors
and,
Carrie Neighbors,
Defendants.
MEMORANDUM & ORDER
Mr. Guy S. Neighbors and Ms. Carrie Neighbors (“defendants”) have moved to dismiss
with prejudice one of the criminal charges in a four-count indictment against them on the ground
that the government has failed to bring them to trial promptly in violation of the Speedy Trial
Act, 18 U.S.C. § 3161. The government objects.
I. Background
On December 7, 2006, the Neighbors were indicted for being unlawful users of a
controlled substance who knowingly and unlawfully possessed firearms under chapter 18,
sections 922(g)(3) and 924(a)(2), United States Code. The defendants made their first
appearance on December 12, 2006 in case No. 06-20171-CM, which is referred to by this court
as the “first indictment” or “first case.” On January 3, 2007, and February 5, 2007, defendant
Carrie Neighbors filed Motions for Extension of Time to File Pretrial Motions, which the judge
granted. The excluded time from these motions was also applied to co-defendant Guy
2
Neighbors. On March 26, 2007, the court made a text entry noting that no motions had been
filed, and the jury trial was scheduled to begin on May 7, 2007. On May 4, 2007, the
government filed a Motion to Dismiss Indictment as to both defendants based on additional
evidence discovered during the ongoing investigation. The judge sustained the motion on May
10, 2007, dismissing the indictment without prejudice.
On June 20, 2007, the defendants were indicted on four counts, including conspiring to
manufacture marijuana, being unlawful users of a controlled substance who knowingly and
unlawfully possessed firearms under chapter 18, sections 922(g)(3) and 924(a)(2) (“Count 2”),
and two counts for knowingly and intentionally manufacturing marijuana. The court will refer
to this indictment as the “second indictment.” (Doc. # 1) Defendants appeared before a
magistrate judge on June 25, 2007. On July 17, 2007, defendant Guy Neighbors filed a Motion
for Extension of Time to File Pretrial Motions (Doc. # 16). At a hearing on August 13, 2007,
the court took the Motion for Extension of Time under advisement and granted Guy Neighbors’s
Motion to Withdraw his attorney (Doc. # 18). The Motion for Extension of Time was later
granted on September 10, 2007.
On September 11, 2007, counsel for Carrie Neighbors filed the Motion to Dismiss Count
2 (Doc. # 24) (“Motion”), currently at issue before the court. Guy Neighbors also filed a Motion
to Disclose Expert Testimony (Doc. # 27) on October 15, 2007, which is still pending. At the
evidentiary hearing on November 5, 2007, Guy Neighbors was permitted to join Carrie
Neighbor’s Motion to Dismiss via his Motion to Join Co-defendant’s Motion to Dismiss
Indictment (Doc. # 28), thereby mooting his Motion to Dismiss Indictment (Doc. # 25) that had
3
been filed on September 12, 2007. The Court also took the Motion to Dismiss Count 2 under
advisement, and after thoroughly considering the parties’ arguments, the court grants the Motion
but reserves the determination of whether to grant it with or without prejudice until after an
evidentiary hearing on the issue.
II. Analysis
The Speedy Trial Act, 18 U.S.C. § 3161 et. seq., is designed to protect a criminal
defendant’s constitutional right to a speedy trial. United States v. Apperson, 441 F.3d 1162,
1177 (10th Cir. 2006); see also United States v. Tsosie, 966 F.2d 1357, 1361 (10th Cir. 1992)
(“[T]he intent of the Act [is] to balance protection of the accused against society’s interest in
efficient criminal process.”). It “requires that a criminal defendant’s trial commence within
seventy days after his indictment or initial appearance, whichever is later. Certain periods of
delay, outlined in detail in the STA, are excluded and do not count toward the seventy-day
limit.” See id. at 1178, citing 18 U.S.C. § 3161(c)(1), (h)(1)-(9); United States v. Lugo, 170 F.3d
996, 1000-01 (10th Cir. 1999). If a defendant is not brought to trial within the seventy day
deadline, which is subject to statutory exclusions, “dismissal of the indictment is mandatory.”
United States v. Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006), quoting United States v.
Doran, 882 F.2d 1511, 1517 (10th Cir. 1989). “The ‘indictment shall be dismissed on motion
of the defendant.” Abdush-Shakur, 465 F.3d at 462, quoting United States v. Vaughn, 370 F.3d
1049, 1055 (10th Cir. 2004); see also 18 U.S.C. § 3162(a)(2) (“If a defendant is not brought to
trial within the time limit required by section 3161(c) [18 U.S.C. § 3161(c)] as extended by
1There apparently was some confusion as to what the defendants were requesting of
the court–to dismiss the entire second indictment or only the one charge found in both the
first and second indictment. Upon inquiry by the court at the hearing, defense counsel
clarified that they were moving only to dismiss Count 2 of the second indictment, which was
the only count in the first indictment.
2“In any case in which a plea of not guilty is entered, the trial of a defendant charged
in an information or indictment with the commission of an offense shall commence within
seventy days from the filing date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1).
4
section 3161(h) [18 U.S.C. § 3161(h)], the information or indictment shall be dismissed on
motion of the defendant.”).
A. Whether the time accrued under the first indictment for Speedy Trial Act purposes is
added to the time under the second indictment when the government moved to dismiss the
first indictment
The Neighbors brought a Motion to Dismiss Indictment as to Count 2 of the second
indictment1 under chapter 18, section 3161(c)(1), United States Code, which relates to the
seventy day deadline.2 The Neighbors also cited section 3161(d)(1), but misinterpreted the
language, as did the government.
If any indictment or information is dismissed upon motion of the defendant, or any
charge contained in a complaint filed against an individual is dismissed or
otherwise dropped, and thereafter a complaint is filed against such defendant or
individual charging him with the same offense or an offense based on the same
conduct or arising from the same criminal episode, or an information or indictment
is filed charging such defendant with the same offense or an offense based on the
same conduct or arising from the same criminal episode, the provisions of
subsections (b) and (c) of this section shall be applicable with respect to such
subsequent complaint, indictment, or information, as the case may be.
5
18 U.S.C. § 3161(d)(1). Both sides apparently interpreted the language “the provisions of
subsections (b) and (c) of this section shall be applicable with respect to such subsequent
complaint, indictment, or information” to mean that the seventy day time period from section
3161(c)(1) would not start anew with the second indictment. This language, however, is
interpreted to mean that when those sections do apply, a new seventy day time period does begin
for purposes of the Speedy Trial Act.
The question, then, is whether the provisions of section 3161(d)(1), and therefore a new
time period under section 3161(c)(1), apply when the government files the motion to dismiss the
first indictment. In a recent case, the Tenth Circuit provided a clear and concise description of
the relationship between sections 3161(c) and 3161(d)(1):
Under § 3161(d)(1), if an indictment is dismissed upon motion of the defendant
and he is subsequently re-indicted with the same offense, the new indictment
begins a new seventy-day period. See § 3161(c); see also United States v.
Andrews, 790 F.2d 803, 809, n.4 (10th Cir. 1986); United States v. Brown, 183
F.3d 1306, 1310 (11th Cir. 1999) (“[Section] 3161(d)(1) resets the periods in
which a defendant must be indicted and tried.”); United States v. Duque, 62 F.3d
1146, 1150 (9th Cir. 1995) (holding the “Speedy Trial Act clock starts fresh”
when the defendant moves to dismiss and is reindicted); United States v.
Giambrone, 920 F.2d 176, 179 (2d Cir. 1990) (“[W]hen the indictment is
dismissed on motion of the defendant and there is reprosecution, the 70-day period
provided by § 3161(c) begins anew.”). . . .
However, where the government moves to dismiss the indictment . . . and then
refiles a second indictment alleging the same charges, the government does not
get a new seventy-day clock. See United States v. Gonzales, 137 F.3d 1431,
1433-34 (10th Cir. 1998); United States v. Broadwater, 151 F.3d 1359, 1360 (11th
Cir. 1998) (“If the government moves to dismiss a count following a mistrial, it
does not get a ‘fresh clock’ on reindictment; rather, the time is tolled from the
dismissal of the original count until the reindictment.”) (emphasis added); United
States v. Menzer, 29 F.3d 1223, 1227-28 (7th Cir. 1994); United States v. Hoslett,
998 F.2d 648, 658 (9th Cir. 1993); United States v. Leone, 823 F.2d 246, 248 (8th
3The government also made the argument at the hearing that because no challenge was
made at the time the first indictment was dismissed without prejudice, the defendants should
not now be able to bring this motion to dismiss. This, however, is not the same argument the
defendants now make. There is nothing in a dismissal without prejudice that also means the
government can disregard the time limits of the Speedy Trial Act. While the government
was free to indict the defendants with the same charge based upon the “without prejudice”
order, it still had an obligation to do so under the applicable time limits of section 3161(c)(1)
because the government, not the defendant, moved to dismiss the first indictment. The
argument, therefore, has no influence on the fact that the Speedy Trial Act deadline does not
start over when the government is the party that filed the motion to dismiss the first
indictment.
6
Cir. 1987) (same). “The reason for this rule is obvious. If the clock began anew,
the government could circumvent the limitations of the Speedy Trial Act by
repeatedly dismissing and refiling charges against a defendant.” Hoslett, 998 F.2d
at 658, n.12; see also United States v. Rojas-Contreras, 474 U.S. 231, 239 (1985)
(Blackmun, J., concurring) (same).
United States v. Abdush-Shakur, 465 F.3d 458, 463, n.4 (10th Cir. 2006) (emphasis added); see
also 18 U.S.C. § 3161(h)(6) (stating that when the original indictment is dismissed upon motion
of the government “and thereafter a charge is filed against the defendant for the same offense”
the time is tolled between the dismissal of the first indictment and when the time commences for
the subsequent charge, i.e., upon indictment or appearance); United States v. Magana-Olvera,
917 F.2d 401, 405 (9th Cir. 1990) (“[I]f the first indictment is dismissed on the government’s
motion, the statutory time limit is merely suspended until a new indictment is returned; the
70-day clock is not reset.”). It is clear that when the government moves to dismiss the first
indictment, as was the case here, the Speedy Trial Act clock does not begin anew for the same
charge filed in the second indictment; the time accrued towards the seventy days under the first
indictment is added to the time under the second indictment.3
7
B. Calculation of time under the Speedy Trial Act
The court concludes that the time accrued under the first indictment must be combined
with the time under the second indictment, so it is necessary to calculate the time included within
the Speedy Trial Act provisions. For a Speedy Trial Act violation to have occurred, seventy
non-excludable days must have passed since defendants appeared before the judicial officer on
December 12, 2006. “The defendant shall have the burden of proof of supporting such motion
[to dismiss indictment pursuant to the Speedy Trial Act] but the Government shall have the
burden of going forward with the evidence in connection with any exclusion of time under [18
U.S.C. §] 3161(h)(3).” 18 U.S.C. § 3162(a)(2).
In the Motion to Dismiss and at the hearing, the defendants claim that after reviewing the
docket sheet, they determined there were sixty-three days that should be included within the
Speedy Trial Act calculation under the first indictment. The sixty-three day total was determined
based on time between December 7, 2006, the day that the indictment was filed, and May 10,
2007, the day the indictment was dismissed. The first appearance as to the second indictment
was made on June 25, 2007 and Guy Neighbors filed a Motion to Extend Pretrial Motion
Deadlines on July 17, 2007. Between these dates, the defendant calculated that twenty-two days
should be included in the Speedy Trial Act calculations. Under both indictments, the
defendants’ totals show the number of days as eighty-five. Upon independent review by this
court, according to ECF, fifty-eight days had accrued under the first indictment and twenty-one
days under the second indictment, totaling seventy-nine.
8
The government has the burden of proving any applicable exclusion of time under the
Act. 18 U.S.C. § 3162(a)(2). The government stated in its motion that twenty-two days had
elapsed under the second indictment, but made no other challenges to the calculations either in
its response to the motion or at the hearing. Whether the defendants’ calculation or the
calculation by ECF is accepted, the seventy day deadline has passed, and the government has
not proven that any other exclusions should apply to extend that time. The court, therefore,
grants the Motion to Dismiss Count 2 of the second indictment. See 18 U.S.C. § 3162(a)(2);
Abdush-Shakur, 465 F.3d at 462 (“Subject to statutory exclusions, if a defendant is not brought
to trial within the seventy-day deadline, dismissal of the indictment is mandatory.”).
C. Whether the dismissal of the case due to a Speedy Trial Act violation should be with or
without prejudice
Because the seventy day deadline has passed and the court dismisses the indictment on
Count 2, the court must determine whether the charge should be dismissed with or without
prejudice. Abdush-Shakur, 465 F.3d at 462 (“[T]he district court retains broad discretion
whether to dismiss the indictment with or without prejudice.”). “In determining whether to
dismiss the case with or without prejudice, the court shall consider, among others, each of the
following factors: the seriousness of the offense; the facts and circumstances of the case which
led to the dismissal; and the impact of a reprosecution on the administration of this chapter [18
U.S.C. §§ 3161 et seq.] and on the administration of justice.” 18 U.S.C. § 3162(a)(2). Prejudice
to the defendant is among the other factors relevant to the district court’s consideration. Abdush-
Shakur, 465 F.3d at 462, citing United States v. Taylor, 487 U.S. 326, 334 (1988).
9
At the hearing because the court had not yet resolved whether there was a Speedy Trial
Act violation, little evidence or argument relating to these “with or without prejudice” factors
was presented. Now that the court has determined there has been such a violation and that Count
2 will be dismissed, the court will hold an evidentiary hearing on the limited issue of whether
the count should be dismissed with or without prejudice. The court will take into consideration
evidence and arguments regarding the seriousness of the offense, facts and circumstances that
led to the dismissal, and the impact reprosecution would have on the administration of the
Speedy Trial Act and on the administration of justice, as well as other factors, including the
prejudice suffered by the defendants.
III. Conclusion
In sum the court finds that where the government filed the motion to dismiss the first
indictment, the seventy day Speedy Trial Act time period does not start anew. Instead, the time
accrued under the first indictment is added to the accumulated time of the second indictment.
Based on this and the corresponding calculation of time exceeding seventy days, the court grants
defendants’ Motion to Dismiss Count 2. The court reserves the ruling of whether to grant the
Motion with or without prejudice until an evidentiary hearing is conducted on the matter.
IT IS THEREFORE ORDERED BY THE COURT that the Motion to Dismiss Count 2 (Doc.
# 24) is GRANTED, but RESERVES the determination of whether to grant the motion with
or without prejudice until after the evidentiary hearing.
IT IS SO ORDERED.
10
Dated this 16th day of November, 2007.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

Round 2 of mental Exams.

Carrie and Guy Neighbors have undergone a second round of mental evaluations. This was an attempt by the prosecution to delay the trial date until she can figure out what she is going to do about this Gigantic mess she has created.


The outcomes of the 2nd round of Evaluations is.....
Carrie Neighbors has been found competent for a second time now.

and Guy Neighbors has been found incompetent so he will be medically treated and then re-evaluated in 30 days.

So after they were found competent 7 months ago the prosecutor requested a second round of exams. and no surprise one of the two people did not pass.

What does this mean for the neighbors ???

Well now the trial has been delayed another 120 days so its been delays almost 1/2 a year. So the prosecutor has been successful at delaying the trial even longer. It's already been 5 years now it looks as if this could go on forever.

Lanny D Welch along with Marietta Parker commit fraud against The Kansas department of Justice

Lanny D Welch along with Marietta Parker commit fraud against The Kansas department of Justice. In a 22 page opinion written by a Federal judge, the court informs the prosecutors Marietta Parker and Lanny D Welch that the continued litigation of charges against Guy and Carrie Neighbors is Illegal due to multiple Civil rights violations

In this opinion the federal judge outlines the case, then he exposes the attempts by the federal prosecutors to violate multiple civil rights held by the defendants Guy and Carrie Neighbors. The Judge then writes that any attempt to re prosecute Guy and Carrie Neighbors on the same charges which were previously dropped (due to a speedy trial Act (6th Amendment) violation committed by the prosecutor) would be inadmissible in court. The judge goes on to say there can be no Jury trial in a case with Civil rights violations.


Why would federal prosecutors Go against a judges Order and recharge Guy and Carrie Neighbors after the court has already observed and made a note that Guy and Carrie have had their Speedy trial Act Violated against them ?

Could it be due to the fact Guy Neighbors is a black man? Because currently he is in prison because the federal prosecutor lied to a federal judge and told him that Guy was a threat to the community when he filed a complaint against her at the department of justice for prosecutor misconduct.

Whats more interesting is how she(the prosecutor) had no prof that he(guy neighbors) has committed any violent acts against anyone. Guy Neighbors didn't even have as much as a parking ticket on his record in the last 27 years.


Judge LungStrums Order to Dismiss case against yellow house store owners Guy and Carrie NEighbors